The Issue Should Petitioner's application for variance from the standards for onsite sewage treatment and disposal systems be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department, through its local health units, is the agency in the State of Florida responsible for permitting or granting variances from permitting standards set forth in Chapter 64E-6, Florida Administrative Code, for Onsite Sewage Treatment and Disposal Systems (OSTDS). Sometime around 1970, Petitioner purchased a mobile home park (Park) in Winter Haven, Florida. The Park presently contains 68 spaces for mobile homes, all of which are occupied. The Park is situated due south of Lake Shipp. There are two canals running approximately east and west through the interior of the Park. Another canal borders the Park on the north side. Included with the purchase of the Park was a Sewage Treatment System (STS) which is permitted and regulated by the Department of Environmental Protection and is presently operating at its maximum capacity serving the 68 mobile homes located in the Park. Sometime around 1980, Petitioner purchased a parcel of land (Property) immediately north of, and across a canal (this is the canal that borders the north side of the Park) from, the Park. The Property borders a basin to Lake Shipp. The Property is zoned for mobile home usage and such is the purpose for which Petitioner purchased the Property. Petitioner has designed the Property such that it will accommodate three mobile home lots (Lots numbered 69, 70, and 71) which Petitioner intends to operate as part of the Park. Initially, Petitioner requested approval of the Department of Environmental Protection to connect the new lots to the existing STS. However, since the existing STS was already at capacity, the Department of Environmental Protection denied Petitioner's request to connect the additional three lots to that system. However, the Department of Environmental protection advised Petitioner that it would have no objection to the installation of septic tanks approved by the Department of Health to serve the additional lots. Subsequently, Petitioner proceeded to obtain the necessary approvals from the local governing authorities and a permit from the Department for the installation of septic tanks on the Property. Petitioner was successful in obtaining the necessary approvals from the local governing authorities but was not successful in obtaining a permit for the installation of septic tanks on the Property from the Department. By letter dated July 16, 1997, the Polk County Health Department denied Petitioner's Application for Onsite Sewage Treatment Disposal System Permit for the following reason: "Domestic sewage flow exceeds 10,000 gallons per day." The denial letter also advised Petitioner that she could request a variance through the Variance Review Board or request an administrative hearing pursuant to Chapter 120, Florida Statutes, on the Department's denial of her application for a permit to install septic tanks on the Property. Petitioner elected to file an application for a variance from Section 381.0065(3)(b), Florida Statutes, with the Variance Review Board. By letter dated August 7, 1997, the Department denied Petitioner's application for variance for the following reasons: The Variance Review and Advisory Committee for the Onsite Sewage Treatment and Disposal Program has recommended disapproval of your application for variance in the case of the above reference property. The granting of variances from established standards is for relieving hardships where it can be clearly shown that the public's health will not be impaired and where pollution of groundwater or surface water will not result, where no reasonable alternative exists, and where the hardship was not intentionally caused by the action of the applicant. The advisory committee's recommendation was based on the failure of the information provided to satisfy the committee that the hardship was not caused intentionally by the action of the applicant, no reasonable alternative exists for the treatment of the sewage, or the discharge from the system will not adversely affect the health of the public. I concur with the advisory committee's recommendation and hereby deny your variance request. Subsequently, Petitioner requested and was granted a formal hearing pursuant to Chapter 120, Florida Statutes, on the denial of Petitioner's application for a variance. The Petitioner intends to locate the OSTDS on the Property. The tank and drain field for the OSTDS will be located approximately 125 feet from the basin. The City of Winter Haven's Sewage System is not available to the Property. The Park's existing STS does not have adequate capacity to accept the sewage that will be generated by the Property. There is no publicly-owned or investor-owned sewage system capable of being connected to the plumbing of the Property. Petitioner testified that the estimated cost of increasing the capacity of the Park's Sewage System to accommodate service to the three additional lots was $30,000.00 - $40,000.00. However, Petitioner presented no evidence as to how the estimate was determined. The projected daily domestic sewage flow from the Property is less than 1,500 gallons per acre per day. The Property contains 1.78 acres and there will be less than four lots per acre. In a letter dated October 17, 1997, from W. R. Cover, a professional engineer with Cover Engineering, Inc., Mr. Cover expresses the following opinion: The location of these proposed mobile homes is such that a septic system will not cause adverse effects or impacts on the environment or public health. The unit will be located so as not to significantly degrade groundwater or surface waters. There is no reasonable alternative for the treatment of the sewage in view of the fact that it would be an additional financial burden to attempt to connect these units to the existing sewage treatment plant Mr. Cover did not testify at the hearing. However, the letter was received as evidence without objection from the Department. Petitioner has failed to present sufficient evidence to show that: (a) no reasonable alternative exists for the treatment of the sewage, and (b) the discharge from the Onsite Sewage Treatment and Disposal System will not adversely affect the health of the applicant or the public or significantly degrade groundwater or surface waters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health enter a final order denying Petitioner's application for variance from the requirements of Section 381.0065, Florida Statutes and Chapter 64E-6, Florida Administrative Code. DONE AND ENTERED this 30th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health 2020 Capital Circle, Southeast Bin A00 Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Robert J. Antonello, Esquire Antonello, Fegers and Cea Post Office Box 7692 Winter Haven, Florida 33883-7692 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830-0293
The Issue Whether the Petitioner's Application for Variance from Chapter 10D-6, FAC Standards for Onsite Sewage Disposal Systems should be approved?
Findings Of Fact By letter dated September 9, 1986, the County Engineer for Volusia County, Florida, denied the Petitioner's request for expedited subdivision. On or about October 15, 1986, the Petitioner filed an Application for Variance from Chapter 10D-6, FAC Standards for Onsite Sewage Disposal Systems (hereinafter referred to as the "Application"). On or about November 12, 1986, the Volusia County Health Department recommended denial of the Application. By letter dated November 24, 1986, the Respondent advised the Petitioner that his Application had been placed on the agenda of the Variance Review Group's December 4, 1986 meeting. By letter dated December 16, 1986, the Respondent informed the Petitioner that the Application was denied. By letter dated January 7, 1987, from the Petitioner's counsel, the Petitioner requested a formal administrative hearing to contest the proposed denial. The property involved in this case is located at 1083 Sheri Boulevard, Daytona Beach, Volusia County, Florida (hereinafter referred to as the "Property"). The Petitioner's parents originally owned 10 acres of property. By warranty deed dated September 12, 1958, the Petitioner's parents gave the Petitioner the Property which consisted of two lots from the ten acres, described as follows: The Easterly 149 feet of the Westerly 295 feet of the Southerly 1/2 (one half) of Lot 140, Blake, as per map in Map Book 1, page 38, of the public records of Volusia County, Florida. The Petitioner's parents also gave five acres of the ten acres to another individual in 1958. This property was developed as a mobile home park. The Property measures 150 feet x 150 feet. The property immediately to the west of the Property is currently owned by the Petitioner's Father. It measures 155 feet x 150 feet. Between 1958 and 1960 the Petitioner began construction of a single- story house on the Property. Also between 1953 and 1960 the Petitioner placed a mobile home on the Property. The Petitioner and his family lived in the mobile home while his house was being constructed. Two septic tanks were placed on the Property sometime between 1958 and 1960. The mobile home located on the Property was hooked up to one of the septic tanks. In 1960 construction of the house was completed and the Petitioner and his family moved into the house. The mobile home remained on the Property until 1961 when it was permanently removed. When construction of the house was completed, both septic tanks were connected to the house. Since 1961, trailers have been temporarily on the Property and have been hooked up to one of the septic tanks. Use of the septic tank by trailers has been infrequent, however, since 1961. Recently the Petitioner placed a mobile home on the Property and hooked it up to one of the septic tanks. The Petitioner was cited by the Volusia County Code Compliance Board for having the mobile home located on the Property. Subsequent to the action by the Volusia County Code Compliance Board the Petitioner attempted to subdivide the Property. The Petitioner proposes using a portion of the Property and a portion of his Father's adjoining property to create a lot 60 feet by 150 feet. The evidence failed to prove how much of the Property and how much of the Petitioner's Father's property would be used to create the new lot. The Petitioner wants to put a mobile home on the new lot and hook it up to one of the existing septic tanks on the Property. The Petitioner plans to provide the mobile home as a home for his daughter who is unemployed. Both of the existing septic tanks on the Property would remain on the Property if the subdivision is approved. The Property is .39 acres and the Petitioner's Father's adjoining lot is .48 acres. The Property and the Petitioner's Father's adjoining property have existing single story residences and use wells located on the property. The private well on the Property is less than 75 feet from the septic tanks. If a new lot is created, it will be located between the Property and the Petitioner's Father's property and all three lots will be less than 1/2 acre in size. The two septic tanks on the Property are larger than normal and the Petitioner is not aware of any problem with the two tanks. The Petitioner does not believe that there has been any contamination of his well caused by the septic tanks. Mobile homes are located in the mobile home park and on other lots in the area of the Property. The mobile homes are located on lots of less than 1/2 acre and they use septic tanks. There is therefore, a high concentration of septic tanks in the area. Mobile homes are frequently moved on and off property in the area but other lots do not remain vacant for any appreciable time. The Respondent reviewed the Petitioner's Application in accordance with its Rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's Application be denied. DONE and ENTERED this 24th day of April, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1987. COPIES FURNISHED: Mr. Sam Power, Clerk Department Of Health and Rehabilitative Services 1323 Wine wood Boulevard Tallahassee, Florida 32399-0700 Mr. Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 James L. Rose, Esquire Rice and Rose Post Office Box 2599 Daytona Beach, Florida 32015 Frederick J. Simpson, Esquire District IV Legal Counsel Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue Whether the Petitioner's request for variance should be granted.
Findings Of Fact Petitioner owns a parcel of land in Palm Beach, County on which is housed Petitioner's paving and landscapping business and which is zoned for industrial use. Petitioner intends to install a manufactured building for use as an office. To provide sewage treatment for the bathroom of the office, Petitioner had a septic tank designed and applied for a septic tank permit which was denied as was its variance request. As a result of a complaint, Petitioner was inspected in August, 1988, by the Palm Beach County Department of Environmental Resources Management and by the Florida Department of Environmental Regulation. Both inspections yielded citiations for soil contamination by oil and other hazardous waste. Petitioner represented that most of the infractions had been rectified by the date of the hearing in this matter and pledged full cooperation with the County and State rules. To oversee the operation of the business and assure that no further problems arose, Petitioner decided to establish its office on site. The closest sewage treatment plant is at full capacity and does not intend to provide service to the parcel in the near future. The adjoining properties are serviced by septic tanks. As such, the proof did not demonstrate that alternative methods of waste disposal were available to the site However, as part of its business operation, Petitioner does minor repair of its equipment on site and may include oil changes and other such services. Although Petitioner does not intend to pollute the groundwater and intends to use the proposed septic tank for office use only, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of its equipment could result in the disposition of prohibited hazardous waste into the groundwater. Further, the proof failed to demonstrate that the septic tank would be protected from use by those who handled the hazardous waste. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner and the proof failed to demonstrate reasonable alternatives of waste disposal, the potential for an adverse affect of the operation to the groundwater is great. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions or whether the property was platted prior to 1972. Accordingly, the denial of the variance was proper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the variance. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of July 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July 1989. COPIES FURNISHED: Hattie Parker 160 Toneypenna Drive Jupiter, Florida 33468 Peggy G. Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the August 30, 1988 application of Petitioner James R. Regan for a permit to operate a wastewater (sewage) treatment facility should be granted in that Petitioner has provided reasonable assurances that the operation of the facility will not discharge, emit, or cause pollution in contravention of Department of Environmental Regulation standards or rules.
Findings Of Fact The sewage treatment plant that is the focus of this proceeding is "Weakley Bayou, Inc.," a corporation. The real property upon which it is located is owned by the wife of James R. Regan. Despite corporate status, Weakley Bayou, Inc. has been operated at the option and control of James R. Regan since its inception in the early 1970's. The permit application here at issue was made in Mr. Regan's name, and he has been treated as if he were the corporation throughout all stages of the permit process. Mr. Regan brought the Petition for Formal Hearing in his own name. He was also accepted as the qualified representative for himself and the corporation. "Weakley Bayou, Inc." is an aerobic gravity flow wastewater treatment plant located in Escambia County. In 1988 James R. Regan applied for a renewal of the operating permit for the facility. The Department of Environmental Regulation (DER) issued an Intent to Deny on December 16, 1988, based on agency perceptions derived from observations, monitoring of Petitioner- generated reports, and grab samples, that the facility did not meet the requirements set down in Rule 17-6 F.A.C. Specifically, the Intent to Deny focused on the following problems: A reclaimed water sample taken on December 6, 1988 revealed the facility was exceeding BOD5 (Biological Oxygen Demand) and TSS (Total Suspended Solids) limits in violation of specific condition number 17 of Permit Number D017-71682. The BOD5 was 232.8 mg/l and TSS was 1,430 mg/l. The same sampling showed the facility was exceeding 200/100 ml for fecal coliform in violation of specific condition number 17 of permit number D017-71682 and Rule 17- 6.180(1)(b)4.d., Florida Administrative Code. The fecal coliform was 79,000/100 ml. Ground water monitoring samples show the levels of nitrates in excess of 10 mg/l in well #l on two out of last four quarterly samples, which is in violation of Rule 17- 6.040(4)(q) paragraph 4.2, Florida Administrative Code. During the inspection on December 6, 1988, the sludge blanket in the clarifier was overflowing the weirs, solids had accumulated in the chlorine contact chamber and percolation ponds in violation of Rule 17- 6.110(3) and 17-6.180(2) (e) , Florida Administrative Code. Auxiliary electrical power is not provided as required by Rule 17-6.040(4) (c) and 17-6.110(3), Florida Administrative Code. The applicant was notified March 14, 1988, that emergency power would be required. During the period (1984-1988) that Petitioner's sewage treatment plant has been permitted by DER, it has been periodically inspected and the Petitioner's self-generated reports have been monitored. From time to time after inspections, Petitioner has been notified of pollution and contaminant hazards or violations pursuant to agency standards, which hazards or violations required corrections in order to retain his permit. Among these hazards and violations have been noted large sewage spills, overflows, poor equipment condition, and substandard plant operation. In most instances, Petitioner cooperated with DER and at least attempted to adjust the plant's operation to conform to the notifications. However, as of December 15, 1988, DER notified Petitioner of the following problems with the plant: sludge blanket in the clarifier overflowing the weir, solids accumulation in the chlorine contact chamber, solids accumulation in both percolation ponds, no auxiliary power on the site, and high levels of nitrates (6.9 ppm) in Monitoring well -1. DER's test of an effluent grab sample tested BOD at 232.8 mg/L and Total Suspended Solids (TSS) at 1430 mg/L. That is, samples taken by DER during an inspection indicated excessive levels of TSS, BOD, and fecal coliform, in violation of Chapter 403 F.S. and Chapter 17-6 F.A.C. Mr. Regan admitted that for approximately four years, broken and unrepaired pipes and fittings at his plant had caused sewage spills or overflows of approximately eight thousand gallons of sewage sludge. He contended that the surface enrichment around Monitoring Well #1 was caused by a separation of a two-inch PVC skimmer line which was corrected in March 1988. Although Mr. Regan established that the leak in the pipe had been repaired, the evidence does not permit a finding that this enrichment was solely from that source, that it will dissipate over a reasonable time, or that it has not polluted the ground water. 1/ Thus, there is no reasonable assurance that fixing the leak, by itself, protects the environment. Over a period of time, Petitioner's own groundwater monitoring reports showed excessive nitrate levels and these have worsened since late 1988, according to witness Ray Bradburn. Petitioner contended that a grab sample is not as accurate as a composite sampling. Although DER witnesses concur in this contention of Petitioner with regard to grab samples generally, and although one DER witness suggested that part of the December 1988 grab sample reading by itself would not cause him to deny the permit, no credible evidence disputes the accuracy of the December 6, 1988 grab sample as a grab sample.2/ Petitioner admitted that it was and continues to be his conscious management decision to keep the plant's auxiliary gasoline powered engine locked away from the plant site so as to discourage theft and vandalism, and so as to discourage childish curiosity which might expose Petitioner to liability. He was reluctant to secure the engine on the premises as a hedge against emergency shutdowns of the plant. Mr. Regan, upon advice of outside engineers, has attempted to correct many of the cited errors and omissions. However, notwithstanding the DER's express disapproval of such a method, Mr. Regan has instructed his plant operators to curtail the input of air from the plant's blower to the sewage at night so as to create a "belching" effect designed to clear out certain wastes and thereby attempt denitrification in the clarifier. DER witnesses did not explain in any detail why Regan's belching procedure was unacceptable except that addition of an expensive denitrification unit was preferable and constituted a "reasonable assurance," whereas Mr. Regan's method had not been demonstrated to be successful in the past. Mr. Regan, who bears the burden of proof in these proceedings, did not demonstrate that his "belching" system was a reasonable assurance of denitrification or offer expert witnesses to support such a theory. This sewage treatment plant is subject to a Notice of Violation which became final on September 21, 1989. 3/
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the pending permit application. DONE and ENTERED this 31st day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990.
The Issue The issue is whether respondents should have a civil penalty imposed against them for failing to repair allegedly faulty on-site sewage disposal units.
Findings Of Fact Based upon all the evidence, the following findings of fact are determined: Respondents, Carl L. and Deborah J. Forrester, have resided on Lem Turner Road in Callahan, Nassau County, Florida, since December 1988. Their home is serviced by two underground sewage disposal systems, both located in the back yard and installed prior to 1983. In the fall of 1991, Betty Bailey and her now deceased husband began construction of a new home on the lot adjacent to the Forresters. The home was completed in early 1992. As a result of a complaint filed by Bailey with the Nassau County Public Health Unit, which is an arm of respondent, Department of Health and Rehabilitative Services (HRS), respondents were required to obtain a construction permit to repair their sewage disposal systems. Because HRS concluded that respondents did not repair their systems as required by the permit, it contends they should be assessed a civil penalty until the violations are corrected, but that such fine not exceed $1500. This preliminary decision is embodied in an administrative complaint issued against respondents in early 1993. The street on which respondents live, Lem Turner Road, runs in a north- south direction. Beginning at the northern end of the block and going south are the Lindemann, Forrester, Bailey, and Campbell home sites, respectively. The natural slope of the land runs north to south so that water runs from the Lindemann property, which is the high point on the block, south over the Forrester property, then over the Bailey property, and finally through the Campbell property and into a small pond on an adjacent lot. Directly behind the Forrester lot is a home owned by Susan Lewis and her husband while Ronald K. Earl's home is located on a 3-acre home site directly behind Bailey's lot. There is also a sod farm which lies to the south and east of the block and, at its closest point, is no more than seventeen hundred feet from the Earl property. Since there is no central wastewater treatment plant, each of the homes in this area must use an individual sewage disposal unit (septic tank and drainfield). It is noted that because of the low elevation in the area, and the seasonal high water table elevation, at least 95 percent of all new systems currently installed in Callahan must use a septic tank with a mound-type of drainfield. When the Baileys were constructing their home, Betty Bailey noticed that the elevation of her property was lower than the Forresters' lot, and the area in the back yard immediately adjacent to the Forresters' property line was always "wet" and "mushy". Indeed, it was so wet that on occasion construction trucks would get stuck. She also observed water bubbling up out of the Forresters' yard adjacent to her property line. In an effort to eliminate the wet area, Bailey added a considerable amount of fill dirt to her lot and sodded the area. She recalls adding some twenty loads or so while Carl Forrester says it was much more than that. In any event, the elevation on her lot increased to a height slightly greater than that of the Forrester lot, and this changed the natural flow of stormwater runoff from over her lot to a ditch which straddles her property line. Even so, she says the fill and sod did not correct the wet condition near the property line and it still remained wet as of the date of hearing. After moving into her home in February 1992, Bailey began noticing a sewage odor emanating from the soggy area of ground running from her back yard to the Forresters' back yard. The odor, which was worst in the evening and when it rained, was so bad that it prevented her from using her screened back porch and swimming pool in the evening or entertaining friends outside. The condition still existed as of the date of hearing. Bailey spoke to Carl Forrester about the odor and mushy ground on several occasions. Once he told her there was an underground spring causing the wet ground and suggested she install a french drain system to convey stormwater runoff from her back yard. He also suggested the odor was caused by the nearby sod farm which used manure to fertilize the sod. Bailey contacted the Nassau County Public Health Unit on March 2, 1992, and requested that it check out the source of the problem. Shortly thereafter, Stanley Stoudenmire, a Nassau County environmental health care specialist, inspected the area where respondents' property abuts the Bailey property and observed "mushy" ground, standing water, flies, and bright green algae growth. He also smelled hydrogen sulfide, which is indicative of a failing drainfield, and observed water coming out of the ground. Without the need to take water samples, Stoudenmire identified the pooling liquid as effluent flowing from respondents' drainfields. All of these conditions were indicative of a failed sewage system and constituted a sanitary nuisance. It is noted that an improperly operating system is a threat to human life and safety since it can cause a number of diseases. After advising Carl Forrester that there was a problem with his drainfield, Stoudenmire was told by Forrester that his systems had been checked out by two septic tank firms and nothing was wrong. Nonetheless, Stoudenmire advised Forrester to repair the systems. Stoudenmire continued to monitor the situation and even ran a red dye test on one visit. This produced no evidence of a faulty system, but the test is not a conclusive indicator of a failed system. After Bailey continued to make complaints and further inspections revealed that no repairs had been made, Stoudenmire advised Forrester by letter dated July 9, 1992, that he must obtain a permit to correct the systems. On July 13, 1992, Carl Forrester made application for a permit. The application required him to make a site and soil evaluation and prepare a drawing of the proposed corrections. The next day, Stoudenmire conducted a soil and site evaluation on the Forrester property as an aid to them in determining the type of repairs that they needed and the specifications for the drainfield. According to the soil borings, which were not contradicted, the bottom of the existing drainfields were not separated from the seasonal high water table elevation by at least twelve inches, as required by Rule 10D-6.0571(4), Florida Administrative Code. Further, the area had a clay subsurface, which means that water percolation is not good. On July 16, 1992, respondents made application for a construction permit. The permit contained specifications consistent with Stoudenmire's evaluation and required respondents to disconnect both existing systems and install a mound-type drainfield, like that in Betty Bailey's back yard, so that the required 12-inch separation could be achieved. The permit required the work to be completed within ninety days. On September 15, 1992, Stoudenmire advised respondents by letter that they "had not notified (his) office of any efforts to correct the problem". They were told that unless corrective action was taken within ten days, "legal action would be pursued". On October 26, 1992, a second letter was sent to the Forresters by Stoudenmire advising them that he continued to receive complaints, that the repairs may have been done in "an illegal manner", and that they had "5 days from receipt of this notice to contact (him) for an inspection." In November 1992, Carl Forrester made certain "repairs", but they were not of the type required under the permit. Instead, he installed a french drain system, consisting of a 55-gallon drum, an electric pump and a drain pipe, which simply conveyed stormwater runoff and effluent from his back yard to a percolation system in his front yard. Bailey says that, as a result of these "repairs", she can now smell the sewage odor emanating from the front yard. Forrester also placed lime on the soggy area and sprayed the same area with a chemical. On November 26, 1992, HRS issued another warning letter to the Forresters stating that it was "imperative" that they "cooperate and respond immediately" due to continued complaints by Bailey. Stoudenmire also returned to the site and once again observed insects and "mushy ground", caused by a combination of effluent and stormwater, and could smell a raw sewage odor in an area which straddled the Forrester-Bailey property line. These conditions were the same as those previously observed on prior inspections, were indicative of a failed sewage disposal system, and constituted a sanitary nuisance. There is no evidence that the conditions had been corrected as of the date of hearing. During this same period of time, Susan Lewis, who lives directly behind the Forresters, occasionally smelled a raw sewage odor, especially in the evening, coming from the Forresters' back yard. When she spoke with Carl Forrester about the odor, he told her that he was aware of the problem, had "no doubt" there was sewage "going to" the Bailey property, but denied it was from his systems. However, he also told her he intended to correct the problem. Testimony by two other neighbors established that they do not smell any foul odors coming from the Forrester property but that when climatic conditions are just right, they can smell an odor from the nearby sod farm. However, it is found that the odor smelled by Stoudenmire, Bailey and Lewis comes from the Forresters' faulty drainfields and is different from that occasionally caused by the sod farm. Respondents do not want to incur the cost of disconnecting their two existing systems and installing an unsightly mound system, which would cost almost $3,000.00. In addition, Carl Forrester says that the trucks and equipment used to install a mound system would cause another $2,000.00 in driveway and landscape damage. Because of this, Forrester contends he will sell his home before installing a mound system. Forrester also blamed the newly added fill on Bailey's lot, which disrupted the natural flow of water, for causing the standing water on his property. However, there was no evidence that this condition caused the drainfields to operate in a faulty manner. Forrester also said four septic tank firms found his systems to be in compliance with HRS rules. But this testimony is hearsay in nature and cannot be used to make a finding in his favor. Finally, he blamed part of the odor on a rotting gum tree stump in his back yard which eventually dissipated. However, this contention is not accepted as being credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing a $1,000 civil penalty upon respondents for violating Subsections 386.041(1)(a) and (b), Florida Statutes, and Rule 10D-6.0571(4), Florida Administrative Code. Respondents should also be required to correct their failed system by installing a mound- type drainfield within thirty days from date of final order. DONE AND ENTERED this 20th day of May, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1300 Petitioner: 1-2. Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in findings of fact 6 and 9. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. Covered in preliminary statement. Partially accepted in finding of fact 4. 9-10. Partially accepted in finding of fact 7. Partially accepted in finding of fact 12. Partially accepted in finding of fact 2. Respondents: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 3. 5. Partially accepted in finding of fact 12. 6-7. Partially accepted in finding of fact 6. 8. Partially accepted in finding of fact 7. 9. Partially accepted in finding of fact 6. Partially accepted in findings of fact 1 and 12. Partially accepted in finding of fact 9. Partially accepted in finding of fact 10. 13-14. Partially accepted in finding of fact 11. 15. Partially accepted in finding of fact 12. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Robert L. Powell, Agency Clerk Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John S. Slye, Esquire Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Charlene J. Petersen, Esquire Post Office Box 2417 Jacksonville, FL 32231-0083 J. Gary Baker, Esquire Post Office Box 1177 Callahan, FL 32011
The Issue The issues in this case are: Whether Mr. Decker had an improperly maintained septic system on his property. Whether Mr. Decker illegally repaired his on-site sewage treatment and disposal system. Whether the Department of Health properly issued a citation to Mr. Decker for violation of Sections 381.0065(4) and 386.041(1)(b), Florida Statutes.
Findings Of Fact On April 25, 1997, an employee of the Department of Health, Volusia County Health Department, David Stark, inspected Mr. Decker's property known as Bulow Creek Farm. Mr. Decker provides low-cost rental housing on this property which utilizes an onsite well to provide drinking water. Mr. Stark observed a wet area in the ground with the smell of sewage near the building identified as Apartment Building C, which houses seven (7) apartments. Mr. Stark identified this area as a sewage leak. On May 28, 1997, Mr. Stark returned to Mr. Decker's property with another Volusia County Health Department employee, Ed Williams. They both observed a wet area in the ground with the smell of sewage in the vicinity of the septic tank serving Apartment Building C. Mr. Stark identified this area as a sewage leak. Mr. Stark issued a Notice of Violation (NOV) to Mr. Decker which stated the raw sewage leak was a sanitary nuisance and provided that Mr. Decker should have his drainfield repaired in accordance with the repair permit Mr. Decker had previously obtained from the Department. The NOV stated the repair should be completed no later than June 11, 1997. A repair permit is valid for a period of eighteen (18) months. Mr. Decker's permit expired on April 20, 1997. Repairs must be inspected by the Department as they are made. On June 13, 1997, Mr. Stark mailed Mr. Decker a letter reiterating the need for repair of his septic system and enclosed a Notice of Intended Action giving Mr. Decker a deadline of June 20, 1997 to make the needed repairs. Mr. Stark received a letter dated June 29, 1997, from Mr. Decker, informing him that Mr. Decker, himself, had repaired the drainfield for Apartment Building C. The letter described the new tank and drainfield which Mr. Decker had installed, and Mr. Decker stated his repair was a "cheaper version of what you wanted me to do in the first place." Mr. Decker had not sought the required inspections for the repairs which he had made to the septic system, and the repairs were not inspected and approved by the Department. The Department cited Mr. Decker for having an improperly built or maintained septic system, and for failing to repair the system in accordance with the terms of the permit. The citation levied a $500 civil fine for Mr. Decker's violation.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department issue a final order affirming the civil penalty against Mr. Decker and requiring Mr. Decker to repair his septic system according to permit. If Mr. Decker fails to effect the repairs, the Department should initiate action to abate this public health hazard. DONE AND ENTERED this 6th day of March, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit in consideration of the statutes and rules relating to approval of permits cited and discussed herein, or whether they are entitled to a variance from the strict requirements of those statutes and rules so as to allow the installation of the OSDS on their property near the Suwannee River. See Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioners purchased real property located in Levy County, Florida, in 1967. That property is located in the unincorporated community of "Fowlers Bluff" on the east bank of the Suwannee River. The property is more particularly described as the west one-half of Lot 13, and the east three- quarters of Lot 14, Treasure Camp Addition, Unit 3. The lot in question is approximately 100 feet by 125 feet by 197 feet in size. There is adequate unobstructed area available for the subject system's installation, according to Respondent's Exhibit NO. 1 in evidence. The lot is part of a subdivision which was platted prior to 1956. The subject lot has available a potable water source from the public water system. Consequently, the lot is of sufficient size to meet the quarter-acre minimum requirement for the installation of septic tank and drain-field systems in situations where lots have potable water available from a public water system, which is the case in this circumstance. The effective soil depth at the drain-field installation site is greater than 42 inches below the bottom surface of the proposed drain-field trench or absorption bed location. That is, 72 inches of sand, which is a "slight limited soil" and appropriate for such installations, exist at the site. The wet season water table was shown to exist at 26 inches below the grade level. The wet season water table, pursuant to Rule 10D-6.047(2) Florida Administrative Code, must be at least 24 inches below the bottom surface of the drain-field trench or absorption bed. Consequently, the wet season water table in this situation is not sufficient in depth for the proposed installation to meet this provision of the Respondent's rules. The Petitioners seek to gain approval for a system to serve a single- family residence of approximately 2,000 heated and cooled square feet, with a "standard" 350 gallons per day sewage flow. The residence would contain three bedrooms, as presently envisioned. The Petitioners' Exhibit NO. 1 establishes a benchmark elevation for the grade level of the proposed OSDS installation site of 7.48 feet above mean sea level ("MSL"). The actual grade elevation is 0.8 feet below that benchmark elevation. That is, the elevation of the grade of the property is 6.72 feet above MSL at the proposed installation site., The ten-year flood elevation for the proposed installation site, however, is 9 feet above MSL, as verified by a report prepared by the Suwannee River Water Management District, admitted into evidence and which was submitted to the Respondent by the Petitioners in the application process. The property also lies within the regulatory floodway of the Suwannee R for purposes of Rule 10D-6.047(6), Florida Administrative Code. Testimony by Mr. Parker, as well as the Respondent's evidence through Mr. May, establishes that the property in the past has had approximately 30 inches of fill placed on it. Because of this, the grade level elevation is in fairly-close proximity to the ten-year flood elevation and because of the prevailing slight limited soil type down to a depth of six feet, the property was shown to be generally amenable to installation of a mounded septic tank and drain-field disposal system, which mounding could raise the property so that the bottom of the drain-field trench or absorption bed would not be within the ten- year flood elevation. As Mr. May indicated by letter dated March 1, 1990 to Mr. Parker, the lot could be filled utilizing slight limited soil so that a mound to contain the septic tank and drain field of no more than the required 36 inches, pursuant to Rule 10D-06.0493(b), Florida Administrative Code, might be utilized. That letter, in evidence, also indicates that if the lot, or a portion of it, is filled, the fill shall extend a minimum of 20 feet in all directions beyond the perimeter of the mound base. The lot was shown to be of sufficient size to accommodate such a perimeter area of fill. In that same letter, Mr. May advised Mr. Parker that he had the right to request a variance from the provisions of Chapter 10D-6 Florida Administrative Code, since his property, in Mr. May's view, did not meet the criteria in that regulatory chapter for the issuance of an actual permit. The record does not reflect that an actual variance application had been filed, however. It would thus seem that this property is amenable to a reasonable alternative solution to a conventional, subterranean septic tank and drain-field system by the use of the "mounding process". That alternative, however, pursuant to Rule 10D-6.047(6), Florida Administrative Code, would require the certification of a registered professional engineer to the effect that the installation of such a mound could be done ,in such a way as not to raise the "base flood" level. This is because the property lies within the regulatory floodway of the ,Suwannee River; and under the rule section cited last above, a `certification must be made that the base flood level will not be raised by such a mounded system installation for property lying in the regulatory floodway. The Petitioners adduced no such engineering testimony or evidence to establish that if the system were installed with the mounding process, the base flood level would not be raised. In addition to the evidence culminating in the above Findings of Fact, the Petitioners offered general testimony to the effect that they had purchased the property in question for purposes of both having a "retirement rest egg" and a place to live should they choose to live on the property. The Petitioners established that they, like numerous other OSDS permit applicants in similar proceedings, are undergoing a hardship because they purchased the property for residential purposes or for re-sale for residential purposes and cannot construct a residence and live on the property or sell it for that purpose because of the inability to obtain a permit. The Petitioners' proof, in terms of the variance criteria noted below, is inadequate to show that there are no alternative systems available which will adequately dispose of and treat the sewage to be expected, nor did the Petitioners establish that installation of the system presently proposed would only constitute a minor deviation from the requirements of the Respondent's OSDS permitting rules, in terms of having no adverse effect on the health of the Petitioners, the general public, or upon the surface or ground waters involved in the vicinity of the site. Although the Petitioners did not formally apply for a variance, no adequate proof in these two particulars was offered so as to justify the grant of a variance; however, it was established that the property was platted prior to 1972 for purposes of the relaxed consideration embodied in the variance rule and statute for this circumstance. The Respondent now asserts, however, that the Petitioners should not be accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances or permits for OSDS's within the ten-year flood elevation. The Governor's Executive Order, which incorporated the "Suwannee River Task Force" recommendation to preclude such systems beneath the ten- year flood elevation, was entered on January 17, 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the application for the subject permit, without prejudice to a later application for a variance or a later application for an OSDS permit based upon additional and changed facts and circumstances. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3695 The Petitioners submitted no proposed findings of fact. Respondent's Proposed Findings of Fact: 1-8. Accepted. 9. Rejected, as immaterial. 10-11. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Arnold G. Parker P.O. Box 467 Chiefland, Florida 32626 Frances S. Childers, Esquire Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, Florida 32609
The Issue Whether Permit No. DO19-101251 issued to Mr. Vail on July 11, 1985 to construct and operate an on-site wastewater treatment and disposal system should be revoked?
Findings Of Fact Mr. Vail is the owner and operator of a business called the St. George Inn and Restaurant (hereinafter referred to as the "Inn"). The Inn is located at the southeast corner of the intersection of Franklin Boulevard and Pine Avenue on St. George Island, Florida. In May of 1984 Mr. Vail spoke with an employee of the Department of Health and Rehabilitative Services about obtaining a permit to construct a septic tank on his property for use by the Inn for the treatment and disposal of wastewater. Mr. Vail was instructed to submit a design of the septic tank for approval. Mr. Vail contracted with McNeill Septic Tank Company for the design and construction of the septic tank. The evidence failed to prove when Mr. Vail applied with the Department of Health and Rehabilitative Services for a permit. As of March, 1985, however, Mr. Vail had not received approval or disapproval of his application from the Department of Health and Rehabilitative Services. Mr. Vail, therefore, went to the Governor's office to seek help in getting a response. Shortly after contacting the Governor's office, the Department of Health and Rehabilitative Services informed Mr. Vail that he needed to obtain a permit from the Department and not from the Department of Health and Rehabilitative Services. On or about March 18, 1985, Mr. Vail filed an Application to Operate/Construct Industrial Wastewater Treatment and Disposal Systems (hereinafter referred to as the "Application"), with the Department. The Application was prepared by Brown and Associates Civil Engineers and Land Surveyors, Inc., Mr. Vail's engineering consultant. The Application was certified by Benjamin E. Brown, Professional Engineer. Mr. Vail signed the Application as "owner" and indicated that he was aware of the contents of the Application. In the Application, "St. George Inn Restaurant" is listed as the "Source Name." Under Part II, A of the Application, the applicant is asked to "[d]escribe the nature and extent of the project." In response to this request, the following answer was given: This project will provide a sewage disposal system for a one hundred and fifty (150) seat restaurant on St. George Island. Sizing of the septic tank system is based on 50 GPD/seat and secondary treatment will be provided by the design proposed. Under Part III, A of the Application, the applicant is asked to provide the following information and the following answers were given: Type of Industry Restaurant . . . . 3. Raw Materials and Chemicals Used Food preparation only. Normal Operation 12 hrs/day 7 days/week . . . . If operation is seasonal, explain This restaurant will be used the most during the summer months which corresponds with ocean/beach recreation & the tourist trade. Nowhere in the Application is it indicated that the permit applied for involved anything other than a restaurant. The Application gives no information from which the Department could have known that the proposed wastewater treatment and disposal system would handle waste from guest rooms or an apartment. In the Application Mr. Vail sought approval of a permit to construct and operate a wastewater treatment and disposal system to serve a 150 seat restaurant. In the Application Mr. Vail sought a permit for a system which was to have a design flow of 7,500 gallons per day based on 50 gallons, per seat, per day water usage. An employee of the Department wrote a memorandum dated May 5, 1985, recommending approval of the Application. The Department determined, however, that the size of the property on which the Inn was to be located was not large enough for the drain field necessary to accommodate a 150 seat restaurant. Therefore, Mr. Brown modified the proposed system and resubmitted application data indicating that a 108 seat restaurant would be constructed. The design flow of the new proposal was 2,160 gallons per day based on 20 gallons per seat per day. Mr. Brown had requested that the Department approve a system based upon the newly submitted design flow. The Department and Mr. Brown both agreed that this design flow was adequate; that it was reasonable to anticipate and provide for the treatment and disposal of a maximum of 2,160 gallons per day design flow. The effect of reducing the design flow and the number of seats was to allow a shortened drain field which could be accommodated by the size of the property the Inn was to be located on. On June 27, 1985, Mr. Vail arranged for a notice to be published in the Apalachicola Times. That notice provided, in pertinent part, the following: State of Florida Department of Environmental Regulation Notice of Proposed Agency Action on Permit Application The department gives notice of its intent to issue a permit to Jack Vail to construct a restaurant and on-site wastewater treatment and disposal system [sic] at Franklin Boulevard and Pine Avenue, St. George Island. The treatment consists of grease trap, septic tank, and sand filter followed by disposal into a drainfield. The project meets applicable standards and will not impair the designated use of the underlying ground water. There is no anticipated impact on surface waters or air quality. . . . . This notice was sent to Mr. Vail by the Department and he made arrangements for it to be published. Nowhere in the notice is it indicated that the system to be approved by the Department is for anything other than a restaurant. On July 11, 1985, less than four months after the Application was filed with the Department, the Department issued Permit Number DO19-101251 (hereinafter referred to as the "Permit"). In the cover letter sent with the Permit the Department indicated that the Permit allowed Mr. Vail "to construct and operate a 2,160 gallon per day, on-site wastewater treatment and disposal system serving St. George Inn Restaurant. . . ." The Department also indicates in the Permit that it is for the "St. George Inn Restaurant." The Permit also provides, in pertinent part, the following with regard to the purpose of the Permit: The above named applicant, hereinafter called Permittee, is hereby authorized to perform the work or operate the facility shown on the application and approved drawing(s), plans, and other documents attached hereto or on file with the department and made a part hereof and specifically described as follows: Construct and operate a 108 seat restaurant with an on-site wastewater treatment and disposal system. Wastewater flows shall be a maximum of 2,160 gallons per day generated by domestic facilities and kitchen wastes . . . Construction shall be in accordance with application dated March 18, 1985 and additional information submitted April 29, 1985, specifications and other supporting documents prepared by Brown and Associates and certified by Benjamin E. Brown, P.E. and submitted to the Department on June 5, June 17, and June 20, 1985. The Permit also contains the following "General Condition" number 2 and "Specific Condition" number 15: . . . . 2. This permit is valid only for the specific processes and operations applied for and indicated in the approved drawings and exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit may constitute grounds for revocation and enforcement action by the department. . . . . 15. The Department shall be notified and prior approval shall be obtained of any changes or revisions made during construction. . . . . The Permit provides the following with regard to the effect of the conditions of the Permit: The terms, conditions, requirements, limitations, and restrictions set forth herein are "Permit Conditions", and as such are binding upon the permittee and enforceable pursuant to the authority of sections 403.161, 403.727, or 403.859 through 403.861, Florida Statutes. The permittee is hereby placed on notice that the Department will review this permit periodically and may initiate enforcement action for any violation of the "Permit Conditions" by the permittee . . . . During the week after the Permit was issued, Mr. Vail obtained a building permit from Franklin County for the construction of the "inn." In February, 1986, after construction of the Inn had begun, Department inspectors went to the construction site of the Inn. The Permit authorized this inspection and other inspections carried out by the Department. The Department determined that the Inn being constructed by Mr. Vail included a restaurant, an apartment on the third floor of the Inn with two bathrooms, and eight guest rooms on the second floor, each containing a bathroom. This was the first time that the Department knew that Mr. Vail's facility was to include guest rooms and living quarters in addition to containing a 108 seat restaurant. In March of 1986, the Department sent a warning letter to Mr. Vail notifying him of the violation of the General Conditions of his Permit: the use of the approved system for the treatment and disposal of wastewater from the ten bathrooms in the guest rooms and the two bathrooms in the apartment in addition to the 108 seat restaurant. On April 1, 1986, Department personnel met with Mr. Vail and Mr. Brown. The Department reminded Mr. Vail and Mr. Brown that the Permit requested and approved by the Department was for a 108 seat restaurant only. The Department had not authorized a system which was to be used for a 108 seat restaurant and ten additional bathrooms. Pursuant to General Condition 14, the Department informed Mr. Vail that it needed an engineer's evaluation of the ability of the system which had been approved to handle the additional flow which could be expected from the additional ten bathrooms. By letter dated April 1, 1986, the Department memorialized the meeting and indicated that Mr. Vail could operate a 100 seat restaurant and the apartment during the interim. By letter dated May 8, 1986, Mr. Brown asked for additional time to submit the evaluation requested by the Department. The Department approved this request by letter dated May 14, 1986. By letter dated May 16, 1986, Mr. Brown submitted an engineering evaluation which proposed modifications to the approved system to handle the additional ten bathrooms. By letter dated June 13, 1986, the Department indicated that the evaluation was generally acceptable" but requested additional information. In January, 1987, before the additional information was submitted, Mr. Brown died in an airplane accident. No evidence was presented to explain why the information requested by the Department in June of 1986 had not been submitted before January, 1987. In March, 1987, the Department inspected Mr. Vail's facility again. In April, 1987, the Department informed Mr. Vail that the Department would take action to revoke the Permit. Before the Administrative Complaint was issued, the Department requested that certain information be provided on behalf of Mr. Vail by an engineer in an effort to resolve the dispute. Mr. Vail did not, however, obtain the services of an engineer. Instead, Mr. Vail sent the Department information purporting to show the amount of water which had been used at the Inn. That information failed to prove the ability of the system that the Department had approved to handle the maximum wastewater which could be expected from maximum use of the 108 seat restaurant and ten additional bathrooms. At best, the information submitted by Mr. Vail is partial proof that the system is capable of handling the wastewater that has been generated at the Inn for the period of time for which the information relates. No competent substantial proof has been submitted to indicate that the system is capable of handling the maximum wastewater flows which may be experienced or even that the system is adequately handling the current flow. All that has been proved is that there is no apparent problem with the system in handling the current flow. In September, 1987, the Department issued the Administrative Complaint. Pursuant to this Complaint, the Department has sought the revocation of the Permit and prescribed certain orders for corrective action. No application has been submitted by or on behalf of Mr. Vail to the Department to construct and operate a wastewater treatment facility designed to accommodate the sewage flows which may be generated by the Inn as it has been constructed. Although the Department of Health and Rehabilitative Services and other agencies were aware that the Inn includes a restaurant and guest rooms, the Department was never so informed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a Final Order requiring that Mr. Vail comply with all of the corrective orders, except Paragraph 18, contained in the Administrative Complaint. DONE and ORDERED this 11th day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NUMBER 87-4242 The parties have submitted proposed findings of fact. It has been noted below which Proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Conclusion of law. 2 1. 3 6. 4 10. 5 12 and 13. 6 14. 7 15. 8 18. 9 19. 10 20. 11-12 16. 13 21. 14 23. 15 24. 16 25. 17 26. 18-19 27. 20 28. 21 29 22 Hereby accepted. Mr. Vail's Proposed Findings of Fact 1A 15. Not supported by the weight of the evidence and irrelevant. Hearsay and irrelevant. Although technically true, this is not the issue in this case. The evidence did not prove that the system "can in actuality handle three times the amount permitted." Not supported by the weight of the evidence and irrelevant. 2A Not supported be the weight of the evidence. Exhibit 6 indicates that the Department was aware that the Inn included "hotel rooms" but not the number. Irrelevant. The evidence did not prove that the Department was aware of the scope of the project. Not supported by the weight of the evidence. 3A Irrelevant. Not supported by the weight of the evidence and irrelevant. Even if this were true, the fact remains that the Department was unaware that the Inn included guest rooms or an apartment. Irrelevant. 4A-B Irrelevant. 5A-B Irrelevant. 6A 2-4. B 5. 6 and 11. Not supported by the weight of the evidence. See 12. 13 and 15. Not supported by the weight of the evidence and irrelevant. Not supported by the weight of the evidence. 7A-C Not supported by the weight of the evidence and irrelevant. 8A-D Not supported by the weight of the evidence and irrelevant. 9A-B Not supported by the weight of the evidence and irrelevant. 10-12 Not supported by the weight of the evidence and irrelevant. COPIES FURNISHED: Richard L. Windsor, Esquire State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. John Vail St. George Inn Post Office Box 222 St. George Island, Florida 32328 Dale Twachtmann, Secretary State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system ("OSDS") permit authorizing installation of an OSDS on property which Petitioner owns near the Suwanee River in Dixie County, Florida, in accordance with Section 8l.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is an owner, by joint tenancy, of real property located in Dixie County, Florida, more particularly described as part of Government Lot 1, Section 4, Township 11 South, Range 13 East; closely proximate to the Suwanee River at a location generally known as "New Pine Landing". The surrounding property is characterized by homes and mobile home,;, which have OSDS's installed and operating. The subject property has no improvements constructed thereon, although the Petitioner intends the placement of a 12X60 foot mobile home, containing two bedrooms and one bathroom. There is no OSDS of any type installed on the property at the present time. The subject property is approximately 18.5 acres in size. It was purchased on January 17, 1990, but the property in question has never been platted. On March 20, 1990, the Petitioner made application for an OSDS permit for the aforesaid property, which was denied by the Respondent's letter of denial dated April 23, 1990. The Petitioner was not afforded the opportunity to pursue an informal variance application through the variance procedure set up by the statute and rules cited hereinbelow. Rather, the Respondent, in its denial letter, indicated that, because of the perceived effect of the Governor's Executive Order, discussed hereinbelow, no variances were being granted and the variance procedure would be "bypassed" in favor of affording the Petitioner a formal administrative hearing before the Division of Administrative Hearings concerning the permit denial. The Petitioner testified generally concerning the character of the property in question and the general nature of the terrain and vegetation. The property is characterized by a wetland or swampy area at one end of the property and, in the area of the proposed installation site, the ground elevation is higher, with a benchmark elevation of 8.8 feet above mean sea level ("MSL"), as established by Herbert H. Raker, certified land surveyor, and depicted by Petitioner's Exhibit 2 in evidence. The Petitioner offered no testimony concerning the ground water levels, other than to say that at one point in time, he dug a three-foot-deep hole on the subject property near the septic tank installation site and observed no water in the hole. His testimony did not indicate at what season of the year the observation was made nor whether conditions were wet or dry at the time. The only concrete evidence concerning ground water level at this installation site was that offered by the Respondent, which indicates that the ground water level at the time of the site evaluation was 42 inches below the surface of the property in question at the proposed installation site and, through observation of "mottling1, of the soil, indicating the presence of dampness, that the wet season water table is 12 inches below the surface of the property. Likewise, the Petitioner professed to have no knowledge of the ten-year flood elevation for the property. The Respondent's evidence, derived from materials submitted by the Petitioner in furtherance of the application, consisting of a report from the Suwanee River Water Management District, establishes that the ten-year flood elevation is 14 feet above MSL for Suwanee River Mile 29, which corresponds to the location of the subject property. The property is also located within the regulatory floodway administered by the Suwanee River Water Management District. Rule 10D-6.047, Florida Administrative Code, mandates that before a mounded system for on-site sewage disposal can be installed, a certification by a registered engineer would be necessary to determine that installation of such a mounded system would not raise the level of the "base flood". No such engineering testimony or evidence has been offered in this proceeding, however. The Petitioner further testified in a general sense that it would be a hardship not to be able to) install the OSDS on the property, given the money paid to purchase the property and the intent by the Petitioner to use it for a residence. The Petitioner has no use for the property without being able to use it for a residence. The Petitioner, however, did not offer any testimony or evidence concerning alternatives to installing the proposed OSDS, nor did the Petitioner establish that installation of such a system or an alternative system would pose no adverse health effects on the Petitioner or members of the general public nor that it would pose no degradation to the surface or ground waters involved for purposes of the Petitioner establishing entitlement to a permit or a variance It should be remembered, however, that the Petitioners were not accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances, or permits for OSDS within the ten-year flood elevation. This leads to its advising the Petitioner that to apply for a variance in this instance would be futile. The Governor's Executive Order, which incorporated the "Suwanee River Task Force" recommendation to preclude such system; beneath the ten-year flood elevation was entered on January 17 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit without prejudice to the Petitioner applying for and seeking a variance from the statutory and rule requirements related to permitting, for the reasons found and concluded above; and without prejudice to pursuing an OSDS permit application at a later time should the Petitioner become able to demonstrate that alternative methods of treatment and disposal of the sewage effluent in question can feasibly be performed within the bounds of the standards enunciated in the above-cited statutes and rules concerning on- site sewage disposal permitting. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3120 Respondent's Proposed Findings of Fact: 1-9. Accepted. Petitioner's Proposed Findings of Fact: None filed. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Mary Ann White and Inman White P.O. Box 756 Old Town, Florida 32680 Frances Childers, Esquire Assistant District Legal Counsel HRS District 3 Legal Office 1000 Northeast 16th Avenue Gainesville, Florida 32609
Findings Of Fact The Petitioner is the owner of Lot 22 at Hatch Bend Upon Suwannee, a subdivision platted and recorded in 1979. Lot 22 lies at river mile 59 of the Suwannee River, as determined by the Suwannee River Water Management District. The Petitioner purchased the property for a site to construct a residence for his retirement. He desires an OSDS to serve a small dwelling which he proposes to construct on the site of approximately 1,000 square feet. The lot is two acres in size. The subject lot is high, level and well drained. In depth, it extends approximately 600 feet from the shoreline of the Suwannee River, upon which it has approximately 150 feet of river frontage. The lot is not subject to frequent flooding, however, as established by a registered land surveyor, the grade elevation of the lot is approximately 19.7 feet above mean sea level ("MSL"), with a benchmark elevation of 20.20 feet at the highest point. The ten-year flood elevation for river mile 59 was established, through information derived from the records of the Suwannee River Water Management District, and in evidence, to be 24 feet above MSL. Thus, the surface of the property involved and the septic tank system installation site lies beneath the ten-year flood elevation. The property, in other particulars, appears to comply with the statute and rules governing requirements for the grant of OSDS permits. That is, the water table level was shown to be more than 72 inches below the surface of the property, which is more than adequate in terms of separation of the proposed drainfield trenches from the ground water table. The soil lying beneath the property is "fine sand", which is a limited soil of an appropriate type for the successful functioning of an OSDS. Based upon mottling found in the soil, the water table during wet seasons is estimated to be at 72 inches below the surface, again, a more than adequate separation between the water table during wet seasons and the bottom of the proposed drainfield trenches. Thus, the subject site is amenable to the installation of an OSDS, but for the fact of its elevation beneath the required ten-year flood elevation. In terms of establishing entitlement to a variance from the subject rule concerning the prohibition of installation of drainfield trenches which will be subject to flooding based upon the ten-year flood elevation, the Petitioner offered no real concrete evidence. The Petitioner merely testified that it was a hardship for him not to be able to construct his proposed retirement home on the property because of the inability to obtain an OSDS permit; however, he did not establish that there were no reasonable alternatives to the normal OSDS proposed and applied for, as for instance, a mounded system so that the drain fields could be installed above the ten-year flood elevation or some other alternative sewage disposal and treatment system. Thus, the Petitioner did not establish that no reasonable alternative exists but to install the normal OSDS, nor did the Petitioner establish that installation of such a system beneath the natural grade would pose no threat to the public's health or the health of the Petitioner. The Petitioner did not establish that such a system would not pose an adverse impact on surface and ground waters in and in the vicinity of the proposed installation site. Thus, no entitlement to a variance from the permitting requirements in the statute and rules cited below was established. The Respondent takes the position that the variance and the permit application should be denied because the proposed installation site lies below the ten-year flood elevation, and, as the Respondent interprets the Governor's Executive Order No. 90-14, issued on January 17, 1990, which adopted Suwannee River Task Force Report Recommendation NO. 36 by reference, the variance request and the permit application should be denied because that Executive Order and the Report Recommendation it incorporates, in essence, calls for the prohibition of any installation of such systems below the ten-year flood elevation based upon a presumption that such would adversely affect public health and the ground and surface waters. The Respondent takes the position that it cannot discretionarily grant variances in such a situation because of the Executive Order.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the application of Vernon Merritt for an OSDS permit and for a variance from the above-discussed permitting requirements, be denied. DONE AND ENTERED this 18th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-3340 The Petitioner submitted no proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted. Accepted. Accepted. 4-5. Accepted, but not relevant and material. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Vernon Merritt P.O. Box 325 Inglis, FL 32649 Frances S. Childers, Esq. Assistant District 111 Legal Counsel Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609 =================================================================
